New Smyrna Rule Could Force Out X-rated Store

The Owner Of The Adult Boutique, Which Is Near A School, Says He Will Fight The City's Decision.

March 18, 2005|By Stephen Hudak, Sentinel Staff Writer

NEW SMYRNA BEACH -- The owner of the only store in town that sells X-rated movies and other sexually provocative merchandise promised to sue the city last night after the City Commission approved an ordinance that could force him to close his shop.

Under the new ordinance, Intimate Moments' inventory would classify the boutique as an "adult entertainment establishment," forbidden to operate on North Dixie Freeway.

"I didn't come here looking to go to court," said David Wasserman, owner of the boutique, housed in a former doughnut shop. "Unfortunately that's the path we seem to be on."

He said his business would suffer if he moved it to one of the city's industrial zones, locations permitted by the ordinance but derided by Wasserman as remote scrubland.

Commissioners passed the ordinance 3-1 after hearing from a dozen residents who, to occasional applause, exhorted them to stand firm and banish all sexually themed businesses.

"If we're not willing to fight for morality, then what are we willing to fight for?" said Shawn Lane, 34, the father of three children.

The new ordinance keeps sexually oriented businesses out of New Smyrna Beach's residential neighborhoods, away from its parks and schools, and off the city's main roads.

It also replaces a law that city attorneys feared would not hold up in a court fight with Wasserman, who has a law degree and has argued First Amendment cases for bikini bars.

He waged a last-minute telephone campaign against the proposed ordinance, asking residents to contact the city and urge its defeat. The computer-generated calls let residents connect directly to City Hall by pressing "1" on their phone. Wasserman estimated he called 8,000 homes.

"There were hundreds," said City Manager Frank Roberts, who fielded many of the calls Wednesday and Thursday.

He said callers were unanimously opposed to sexually oriented businesses and mistakenly thought the ordinance would allow businesses that had previously been banned.

In a brief address to the board, Wasserman defended his boutique as a store frequented by women and couples seeking a romantic spark. He rejected the city's classification, which lumps it with adult bookstores, adult theaters and similar enterprises.

He said the new ordinance was aimed at driving him out of business.

His boutique, near Chisholm Elementary School, drew the ire of the Volusia County School Board, which drafted a letter asking the State Attorney to prosecute him, and members of Sacred Heart Catholic Church, who circulated a petition to oust him.

He opened Intimate Moments on Sept. 17, the same day he filed a pre-emptive federal lawsuit alleging the city's adult-entertainment ordinance was unconstitutionally restrictive.

He later dropped the lawsuit, saying the city had not interfered with his business.

But while city lawyers reworked the ordinance, which they admitted was flawed, Wasserman tried to rally support with a handbill titled "Sex and Censorship in the City."

The leaflet urged his customers to call City Hall and complain to the mayor about the "obscene waste of your tax money in an attempt to close us down." The mayor said he got no calls.

Wasserman, who has previously defended bikini bars and adult bookstores, cannot practice law because his license was suspended for a year after he pleaded no contest to growing marijuana.